Research On The Rule Of Public Interest Defense To Trade Secret Protection

Trade secret as a member of the family of intellectual property rights, its biggest characteristics are secrecy and unlimited duration of protection, plus it’s private right character, make the theoretical conflict between trade secret and public interest protection more complicated. Theory of conflict must be reflected in the real life, Yunnan Baiyao Group refuse to open medicine’s ingredients for it’s a confidential formula, led to many people poisoned and even dead due to it contains toxic substance aconitine, this case is thought-provoking. Because our laws lack of provisions about the rule of public interest defense to trade secrets protection, makes the solution of the conflicts between public and private interest in the real life no rule to obey, but the rules in Europe and America have developed, we can learn and draw lessons from they.The rule of public interest defense to trade secrets protection in Europe and American is set up mainly through cases, and then slowly to summarize to the statute law. The trade secret infringement action in European and US, the disclosing and using commercial secrets behaviors both can apply public interest defense, as long as the defendant to prove they associated with the public interest. In the use of commercial secrets infringement action, to meet the requirements of more important public interest, tend to limit public interest within the scope of the involving state and public security in practice, and in the disclosure of commercial secret infringement litigation, the definition of public interest is related to "misconduct", "freedom of the press" and "disclosed scope". As to legislation, the “Proposal” of EU declaratorily provide that the business secret protection can’t damage the public interest, Canada and Britain, as the members of the European Union, according to its own conditions, formulate the specific rules of public interest defense, provided the way to identify public interest, the burden of proof and the all the situations should be considered when balance the interest of the holder of the commercial secret between the public, such as the nature of the business secret, the extent of the use or disclosure, and so on.The protection of trade secret can’t damage public interests, it’s not only a declared regulation, but a rule could guide the practice, so the author summarizes five points of the apply of public interest defense: the define of the public interest should be strictly, the infringement action of disclosing commercial secrets should disclose crime, fraud, infringement or other violations, the infringement action of using commercial secret, should be involved in national security, public safety and health and other important public issues; the infringement actions applying public interest defense include default disclosure, use the business secrets only; defendants should prove the whole facts supported the defense when he come up with public interest defense, including the disclosure or use behavior concerning public interests and the public welfare is greater than the interests of the protection of business secrets; material injure is not necessary for public interest defense, defendant just need to prove the existence of threat of material injure, that if let the unfair information be hided, developed or used, the material injure is inevitable; After the success of the public interest defense, as to the behavior of disclosing, defendant has not any legal liabilities, as the infringement act of using commercial secret, the defendant may avoid the liability of stopping tort, but should pay damages and royalties.The rule of public interest defense to trade secrets protection in our country provided too simple to guide the practice, then combining the legislations and precedents of the European and American, the author put forward the suggestion to complete the rule of public interest defense in our country from three aspects that the definition of the matter of public interest, the analysis of infringement action and the legal consequences should be burden.